VICTOR MCDUFFY, Applicant

KENNEDY HAHN TV & APPLIANCE, Employer

FRANKENMUTH MUTUAL INSURANCE COMPANY, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. In the last paragraph beginning on page 5 and ending on page 6 of the ALJ's decision, delete the sentence:

"Furthermore, the respondent is liable for the reasonable and necessary indemnity payments associated with the surgery, including temporary and partial disability.".

2. Delete the second paragraph of the ALJ's INTERLOCUTORY ORDER, and substitute:

"The applicant, Victor McDuffy, shall schedule the prescribed surgery within a reasonable time. He shall submit the bill for the surgery to the respondent carrier for payment.".

The findings and order of the administrative law judge, as modified, are affirmed in part and reversed in part.

Dated and mailed October 10, 2002
mcduvi : 101 : 3   ND § 5.46   § 8.33

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

1. Facts and posture.

The applicant, who was born in 1962, seeks compensation for a left knee injury. He began working for the employer as a deliveryman in May 1999, working 12 to 16 hour days, five days a week. At about 9 p.m., shortly after dark on June 21, 1999, the applicant hurt his knees in a fall at work. He was moving a refrigerator to the edge of a truck when-mistaking the pavement below for the truck floor in the darkness-he stepped off the edge of the back of the truck. He fell, striking first his left knee, then his right knee, on the truck's bumper, and landed on his seat on the pavement.

The applicant sought treatment with Dr. Midthun, and was released to work subject to restrictions. He nonetheless returned to his normal job with the employer, and was subsequently discharged. He began working at Wisconsin Office Supply, where he was injured in October 1999 when a cubicle section fell from a cart and scraped his left shin. He later began working at Matt's Express, where he noted increased pain in his left knee with operating a clutch while driving a truck, leading him to return for treatment in April 2000. He eventually came under the care of Dr. Keene, who recommends surgery.

Dr. Keene states his expert medical opinion in a report dated August 10, 2001, at exhibit C. Dr. Keene's report refers to his notes for a description of the accidental event to which the applicant attributed his condition, which of course would be the fall while moving the refrigerator. Dr. Keene goes on to opine that the fall directly caused the applicant's condition, estimated permanent partial disability at ten percent-presumably compared to loss at the knee-unless the surgery decreased the applicant's symptoms. In response to whether he expected further treatment would be necessary, Dr. Keene listed a surgery to include a lateral release.

The respondent retained Subbanna Jayaprakash, M.D., as independent medical examiner. His first report, dated July 9, 2001, includes a diagnosis of nonspecific knee pain. He went on to note that the applicant was able to resume work with Kennedy Hahn within a few days after June 21, 1999, and that he never had any restrictions imposed upon him. He concluded that the applicant reached an end of healing as of September 21, 1999.

Dr Jayaprakash noted that, thereafter, the applicant had his second trauma to his left leg, the incident where the cubicle partition fell against his left shin causing an abrasion. It was only after this, the doctor noted, that the applicant again began seeking medical evaluation for his knee. Dr. Jayaprakash also noted that the applicant's right knee problems subsided within days of the injury, though the doctor conceded the applicant might not have struck his right and left knees with equal force.

He summarizes his conclusion:

"It is my opinion rendered to a degree of reasonable medical probability, that the original impact injury of the left knee on June 21, 1999, would have reached a healing plateau within a matter of three months and, at most, by September 21, 1999. Any further or subsequent treatment and management are as a result of the exacerbation or aggravation injury that was sustained while working for a different employer, Wisconsin Office Supplies, on October 26, 1999, as noted in his treatment. Unfortunately, none of the previous examiners have given either cognizance or have noticed that he did have a second injury and Mr. McDuffy has not been forthright in advising the physicians of the same."

Dr. Jayaprakash did however, believe the MRI showed chondromalacia, though he described it as of a very minimal degree. Dr. Jayaprakash also observed that chondromalacia may originate even without an injury or trauma. Dr. Jayaprakash reiterated that:

"It is fairly clear that he had a second injury on October 26, 1999, which has contributed to his ongoing problems and discomfort in his left knee. In my opinion, the second injury was in itself of significant magnitude, proven by the fact that he had a fairly significant laceration or trauma to his shin on that side. Therefore, the amount of impact to his left knee would be of significant magnitude for which he has received additional attention and treatment."

After considering the notes of Dr. Keene for visits occurring after he wrote his first report, Dr. Jayaprakash's opinion remained unchanged.

2. Discussion.

a. Compensable injury.

The ALJ found the applicant had sustained a traumatic, bilateral knee injury on June 21, 1999, and that all of the care and treatment to the date of the hearing were reasonable and necessary to cure the condition. Accordingly, the ALJ awarded payment of the medical expenses.

In explaining his decision, the ALJ stated that he found Dr. Jayaprakash's opinion incredible for two reasons. First, the applicant injured his left shin, (1) not his left knee, while working for Wisconsin Office Supply in October 1999. Second, Dr. Jayaprakash inaccurately reported that the applicant returned to work with Kennedy Hahn without restriction after the June 1999 injury. Rather, Dr. Midthun set restrictions-fairly significant restrictions on weight bearing and time on the applicant's feet-with which Kennedy Hahn did not comply.

The ALJ also observed that Dr. Jayaprakash acknowledged that the applicant did have something wrong with his knee. Indeed, Dr. Jayaprakash diagnosed chondromalacia, albeit very minimal chondromalacia. However, Dr. Jayaprakash suggested that that condition was not caused by the trauma from the June 1999 fall, though the doctor at least implicitly recognized that the condition could be caused by trauma. (2)

In its brief, the employer and its insurer (collectively, the respondent) argue that Dr. Keene's opinion is less credible than Dr. Jayaprakash's because he (Keene) simply states the applicant's condition was caused by the fall, without specifically explaining how the fall could mechanically have caused the applicant's problems. On this point, the commission notes that Dr. Jayaprakash opines that a trauma or an impact to the knee played some role in the applicant's condition, but prefers to find the indirect trauma to the knee from the cut on the left shin in October 1999 to be causative instead of the direct trauma from the fall to the applicant's left knee in June 1999.

However, the commission, like the ALJ, cannot credit Dr. Jayaprakash's explanation. The applicant had significant knee symptoms immediately with the fall while working for Kennedy-Hahn in June 1999. By contrast, the note dealing with October 1999 shin abrasion at Wisconsin Office does not mention the words "knee" or "patella," or document knee pain. The commission agrees with the ALJ that Dr. Keene's opinion is more credible, and is satisfied that the June 1999 fall caused the applicant's current left knee condition, and the need for the treatment to the date of the hearing.

b. Prospective treatment.

The ALJ also found the surgical procedure proposed by Dr. Keene to be reasonable and necessary. Accordingly, he concluded that the insurer would be liable for the expense of the procedure and for any resulting temporary and partial disability payments. The respondent objects to these findings as well.

The ALJ's findings regarding the future treatment expense is based upon Wis. Stat. 102.18(1)(b), as amended recently by 2001 Wis. Act. 37, effective on January 1, 2002. The recent act changed the statute as follows:

"2001 Wis. Act 37, SECTION 21 Section 21. 102.18 (1) (b) of the statutes is amended to read:

"102.18 (1) (b) Within 90 days after the final hearing and close of the record, the department shall make and file its findings upon the ultimate facts involved in the controversy, and its order, which shall state its determination as to the rights of the parties. Pending the final determination of any controversy before it, the department may in its discretion after any hearing make interlocutory findings, orders, and awards, which may be enforced in the same manner as final awards. The department may include in any interlocutory or final award or order an order directing the employer or insurer to pay for any future treatment that may be necessary to cure and relieve the employee from the effects of the injury. If the department finds that the employer or insurer has not paid any amount that the employer or insurer was directed to pay in any interlocutory order or award and that the nonpayment was not in good faith, the department may include in its final award, as a penalty for noncompliance with any such interlocutory order or award, if it finds that noncompliance was not in good faith, not exceeding 25% of each amount which shall not have been that was not paid as directed thereby. Where. When there is a finding that the employee is in fact suffering from an occupational disease caused by the employment of the employer against whom the application is filed, a final award dismissing such the application upon the ground that the applicant has suffered no disability from said the disease shall not bar any claim he or she the employee may thereafter have for disability sustained after the date of the award."

In its most recent version of its annotation of the Workers Compensation Act (WKC-1-P (R. 07/02), DWD includes the following explanatory note:

"⁹⁶ Administrative law judges are now authorized to award payment for necessary medical treatment on a prospective basis. Chapter 37, Laws of 2001, effective January 1, 2002 amended this section."

The respondent argues that the award of prospective benefits constitutes a deprivation of property without due process of law and that there is not enough evidence about what the surgery might entail to allow an award. In listing various unanswered questions that it believes are necessary to be answered before it can be required to pay, the respondent includes several questions which cannot possibly be answered until the surgery has been performed.

The respondent goes beyond arguing that the applicant has failed to prove his case under the amended Wis. Stat. § 102.18(1)(b) in a normal sufficiency of the evidence sense. Rather, the respondent argues that that the statute as drafted is unconstitutional in its application, whether because it is overbroad, violates due process protections, or constitutes a prohibited "taking" under the fifth and fourteen amendments to the federal constitution and the state counterpart.

However, this commission lacks jurisdiction to address the claim that the newly-amended Wis. Stat. § 102.18(1)(b) is unconstitutional. Administrative agencies have no authority to rule on the constitutionality of the statutes they enforce. McManus v. Revenue Dept., 155 Wis. 2d 450, 454 (Ct. App. 1990). Rather, agencies must apply the statutes, if appropriate, and wait for the courts to decide constitutional issues.

After reviewing the record and the amended statute, the commission is satisfied that the ALJ properly applied the statute to order the respondent to pay for the knee surgery proposed by Dr. Keene. Certainly, the applicant has offered sufficient evidence to eliminate legitimate doubt as to whether the proposed surgery is a reasonable and necessary treatment of the work injury. However, the commission is not persuaded that the ALJ technically has the authority under Wis. Stat. § 102.18(1)(b) to order prospectively the payment of temporary or permanent disability compensation, and so amended his order to remove that language.

The commission, of course, does not suggest that there will be no disability compensation resulting from the proposed surgery, or that the respondent will not ultimately be liable for it when it occurs. Employers and their insurers are liable under the workers compensation law generally for temporary and permanent disability compensation as a consequence of surgery for a worker's compensable injury, regardless of whether an ALJ or the commission is technically authorized to order payment of disability compensation in advance under Wis. Stat. § 102.18(1)(b).

cc: 
Attorney Helen L. Schott
Attorney Paul R. Riegel

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(1)( Back ) The ALJ actually observed the location of scarring from the shin abrasion at the hearing.

(2)( Back ) According to 2 Attorneys' Textbook of Medicine ¶ 7.70 (MB 2002): "Chondromalacia patellae is a term used to describe the softening and progressive breakdown of the articular cartilage of the patella. It is a process that is usually secondary to some underlying condition, such as a single traumatic event or chronic repetitive cyclic overload. However, even though a traumatic etiology has been suggested, the precise reason for the changes seen in chondromalacia remains unclear. "In general, chondromalacia patellae is considered to be either primary and idiopathic (of unknown cause) or occurring subsequent to patellar trauma.." 

uploaded 2002/10/25